DECISION

Fair Work Act 2009
s.157–FWC may vary etc. modern awards if necessary to achieve modern awards objective

Award flexibility–General Retail Industry Award 2020
(AM2021/7)

Award Flexibility – Part-time employment – part-time additional hours – General Retail Industry Award 2020.

Background

[1] This Full Bench is dealing with a Joint Application by the Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Master Grocers Australia (MGA), and an alternative proposal by Australian Business Industrial and NSW Business Chamber (ABI) to amend the provisions applying to part-time employees in the General Retail Industry Award 2020 (Retail Award).

[2] The Joint Application included a proposal to facilitate the working of additional hours by part-time employees by individual agreement by reference to specific agreed shifts or for specific hours for an agreed period. 1 ABI and others submitted that the current clause 10.6 of the Retail Award already allows employers and part-time employees to agree that the employees will work additional hours of work, in excess of their agreed regular pattern of work, paid at their ordinary hourly rate.2

[3] In our decision of 24 March 2021 3 (the 24 March Decision), we accepted that the proper construction of clause 10.6 of the Retail Award is a central issue to our consideration of the Joint Application and ABI’s proposal,4 and went on to say:

‘As mentioned earlier, the proper construction of the existing clause 10 is a threshold issue in our consideration of both the Joint Application and the ABI proposal. Further:

1. It is our view that clause 10 is uncertain and requires variation to resolve that uncertainty.

2. It is our provisional view that there may be merit in the variation of the Retail Award to introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.

The next step in progressing these issues will be for Commissioner Hampton to convene a further conference to discuss the meaning and intent of clause 10 of the Retail Award and our provisional view regarding the variation of the Retail Award (at [155] above).’ 5

[4] On 20 April 2021, Commissioner Hampton convened a conference of the interested parties to discuss the meaning and intent of clause 10 of the Retail Award. Following this, Commissioner Hampton issued a Further Report to the Full Bench (Further Report) which summarised submissions lodged by conference participants in response to issues relating to the construction of clause 10 identified in the 24 March Decision.

[5] On 18 May 2021, having considered the Further Report, we issued a statement, [2021] FWCFC 2820, which set out our provisional views regarding the proper construction of clause 10 of the Retail Award (the 18 May Statement). That statement annexed a draft determination varying clause 10 and 15.9 of the Retail Award (the Draft Determination).

[6] The 18 May Statement invited interested parties to file any submissions on the provisional views and Draft Determination by 31 May 2021, and any submissions in reply by 7 June 2021. We stated that we proposed to finalise the matter ‘on the papers’, having regard to the submissions filed. 6

[7] A more detailed procedural history to this matter is set out in the 24 March Decision and the 18 May Statement; and it is unnecessary to repeat that history here.

Submissions

[8] On 31 May 2021 we received submissions from:

•  ABI

•  MGA/TMA/COSBOA (MGA)

•  National Retail Association (NRA)

•  Newsagents Association of NSW and ACT Ltd (NANA)

•  Retail and Fast Food Workers Union (RAFFWU)

•  SDA.

[9] On 7 June 2021 we received submissions in reply from:

•  the Australian Retailers Association (ARA)

•  SDA.

[10] Ai Group was involved in the earlier proceedings and had given qualified support to ABI’s alternative proposal, but made no submission in respect of the provisional views expressed in the 18 May Statement.

[11] A number of parties have expressed support for some or all of our provisional views but have suggested minor changes to the Draft Determination to clarify its operation.

[12] We received submissions opposing the following provisional views and aspects of the Draft Determination:

•  The variation to clause 10.6 to provide that an ad-hoc variation to a part-time employee’s regular pattern of work should be agreed before additional hours are worked and recorded in writing before the end of the affected shift.⁷

•  That clause 10 of the Retail Award ‘covers the field’ regarding when a part-time employee’s regular pattern of work can be changed. 8

•  The inclusion of clause 10.11, which provides for an employee to request a review of their guaranteed hours. 9

[13] Significant additional changes are proposed by RAFFWU and ABI. ABI submits that there is ongoing merit for a standing consent arrangement. 10 RAFFWU submits that all current protections for part-time employees should be in one place in the Retail Award. 11

Consideration

Agreed variations to the regular pattern of work to be recorded in writing

[14] This issue is addressed at [15]-[20] of the 18 May Statement:

‘Conference participants were invited to address the following points:

•  Must a clause 10.6 variation be ‘in writing’?

•  Does ‘in writing’ include by electronic means, such as a text message?

•  If clause 10.6 permits the agreed temporary variation of a regular pattern of work does the variation agreement have to be recorded in writing before the additional hours (are) worked?

The Further Report observes that all parties making submissions concurred that an agreement under clause 10.6 must be recorded in writing and that this includes by electronic means.  It also observes that all parties recognised that the agreement must be made in advance of additional hours being worked, and that most parties considered, while it does not expressly state that the agreement must be recorded in writing prior to the additional hours being worked, this was likely the intention of the award.

It is our provisional view that clause 10 should be amended to make clear that where an agreement is to be recorded ‘in writing’, this may be done by electronic means, for example through an exchange of emails or text messages.

We recognise that the requirement to record a clause 10.6 agreement in writing, and the obligation in clause 10.7 that an employer keep a copy of such an agreement and provide it to the employee, place a regulatory burden on the employer. We also recognise the need to safeguard employees against being pressured into agreeing to vary their regular pattern of work when their employer needs additional hours worked but is not willing to pay overtime. We consider that the Full Bench’s observations at paragraph [34] of [2015] FWCFB 6847, are apt, albeit they were made in the context of time off in lieu agreement. There the Full Bench said:

‘[34] In circumstances where TOIL is taken at the ordinary time rate, that is an hour TOIL for each hour of overtime worked, employers have a financial incentive to encourage such arrangements. It is important that such a financial incentive not result in employees being pressured into entering TOIL arrangements. The requirements for a separate written agreement both evidences the consensual nature of the arrangement which has been entered into and provides an important safeguard for employees.

[35] We accept that the requirement for a separate written agreement on each occasion gives rise to a regulatory burden…’

It is our provisional view that, to balance the regulatory burden of the record keeping requirements in clause 10 against the need to provide adequate safeguards for employees, clause 10.6 should be amended to:

•  make clear that a variation under clause 10.6 must be agreed before it takes effect, and retrospective agreement cannot be sought, and

•  provide that a clause 10.6 agreement must be recorded in writing before it takes effect, save where an ad hoc variation is made for a single shift, in which case the agreement must be recorded in writing before the end of the affected shift.

Further, we consider that any regulatory burden is reduced by the inclusion of a note to the effect that an agreement under clause 10.6 could be recorded in writing through an exchange of emails, text messages or by other electronic means.’ 12

[15] The Draft Determination gives effect to our provisional view by amending clauses 10.6 and 10.7 to provide (drafting notes included):

[16] ABI and MGA support the variation of clause 10.6 set out in the Draft Determination; 13 others take a different view. ABI submits that:

‘The variation will make it clear that temporary or ad hoc variations to hours of work can be made by consent between an employer and a part time employee at any time.’ 14

[17] NANA submits that the notes to clause 10.5 and 10.6 about how an agreement can be recorded in writing should provide that an agreement ‘could be recorded in writing including through an exchange of emails, text messages or by other electronic means’. NANA submits that this would ensure all parties understand that electronic methods of recording are not the only allowable methodologies for recording an agreement in writing. 15

[18] No other party opposed NANA’s suggestion, 16 and we will incorporate NANA’s suggestion in the final variation determination.

[19] The NRA contends that denying retrospective agreement reduces the utility of the proposed variation, 17 submitting that it may not be reasonably practicable for an agreement under clause 10.6 to be recorded in writing before the end of the affected shift.18 The NRA suggests that it would be more reasonable to require the agreement to be recorded in writing on the same day that the shift was worked, which may be after the shift has ended.19 The ARA supports this suggestion.20

[20] The SDA opposes the NRA’s suggested change, submitting that if no written record is made prior to the work being performed, this could lead to possible disputation as to what was agreed. 21 The SDA also notes that making a formal written record of agreement need not involve a lengthy, complicated process, and could be as simple as a one-line note such as ‘I (name) agree to work to 5pm today the XX/xx/xx as part of my ordinary hours’.22

[21] We agree with the SDA. The NRA’s submissions as to the impracticability of recording an agreement to vary the regular pattern of work in writing before the end of a shift, is unpersuasive.

[22] The SDA also submits that the example provided in relation to ‘Sonya’ in proposed clause 10.6 raises the possibility for ambiguity as it is not clear that Sonya has agreed to work extra hours at ordinary rather than overtime rates. 23 The SDA submits that this could be addressed by adding the words ‘at ordinary hours rates (including any penalty rates)’ after the words ‘2 extra hours’.

[23] The ARA opposes the SDA’s submission. 24

[24] The purpose of the example is to clearly illustrate a variation properly made under clause 10.6. To avoid possible misunderstanding, we will adopt the SDA’s suggestion.

[25] RAFFWU submit that the modern awards objective would not be met where an employee is not provided a copy of the new agreement. And, further, that the modern awards objective is not met where an agreement to vary the regular pattern of work agreed under clause 10.5 can be made after work has commenced and reduced to writing at a later time before the end of the varied shift. RAFFWU says:

‘This change would mean genuine overtime could be represented as a shift variation – including where work is performed for a short period at the end of a shift which would never have been offered as work to an employee engaged in a casual basis.

That is, an employer foreseeing that a busy day will take 30 minutes to finish and close could direct an employee to do that work, have an employee accept they will do that work (in most sectors recognized as undertaking reasonable overtime) and then have the employee accept through some electronic record they finished at the new time. A copy of the record would not be provided to the employee unless they requested a copy. In the industrial reality the hurdles before an employee to prove such conduct was overtime are immense.’ 25

[26] As is made clear in the drafting notes to the draft variation determination at Attachment A to the 18 May Statement, it is intended that a variation to standard hours must be agreed before it takes effect. If an employee is asked to agree to a variation after they have worked additional hours that agreement would have no effect and the employee would be entitled to be paid overtime for the additional hours worked. In our view this variation appropriately balances the interests of employers and employees.

[27] Further we are also of the view that proposed clause 10.6 in the Draft Determination, which entitles an employee to request a copy of the clause 10.6 agreement, strikes an appropriate balance between the need to provide adequate safeguards for employees and the regulatory burden on employers posed by record keeping requirements.

[28] Contrary to RAFFWU’s submission we consider that these amendments meet the modern awards objective set out in s.134 of the Fair Work Act 2009 (Cth) (FW Act).

Meaning of ‘the number of hours agreed under clause 10.5’

[29] Clause 10.8 of the Retail Award provides:

‘For any time worked in excess of the number of hours agreed under clauses 10.5 or 10.6, the part-time employee must be paid at the overtime rate specified in Table 10 – Overtime rates.’

[30] In the course of the conference referred to at [4] above, the conference parties identified that there is ambiguity about whether overtime applies to work performed by a part-time employee on days and times outside their agreed pattern of work.

[31] At [44] of the 18 May Statement, we said that we considered the ambiguity arises from what is meant by ‘the number of hours agreed under clause 10.5’. We went on to express a provisional view at [49] that we should amend clause 10.5 to more clearly reflect that ‘the number of hours agreed under clause 10.5’ means the number of hours the employee has agreed to work on each particular day of the week.

[32] To reflect our provisional view, the Draft Determination defines the number of hours to be worked on each day as the part-time employee’s ‘guaranteed hours’, such that clauses 10.5 and 10.8 would provide (notes excluded):

‘10.5 At the time of engaging a part-time employee, the employer must agree in writing with the employee on a regular pattern of work that must include all of the following:

(a) the number of hours to be worked on each day of the week (the guaranteed hours); and

(b) the times at which the employee will start and finish work each day; and

(c) when meal breaks may be taken and their duration.

10.8 For any time worked in excess of their guaranteed hours, the part-time employee must be paid at the overtime rate specified in Table 10 – overtime rates.’

[33] The Draft Determination also uses the expression ‘guaranteed hours’ in clauses 10.10(a) and 10.11.

[34] RAFFWU submits that the ‘guaranteed hours’ clarification appears to resolve the difference in views expressed by some parties as to the application of clause 10.5. 26 Other parties have suggested minor changes to clauses relating to ‘guaranteed hours’, some of which we will adopt for consistency and clarity, and others which we do not propose to adopt.

[35] We will incorporate the following changes in the final variation determination:

•  clause 10.8 in the Draft Determination will be amended to refer to ‘guaranteed hours agreed under clause 10.5 or 10.6’ (as proposed by ABI and NANA), 27 and

•  the term ‘guaranteed hours’ will be used in clause 21.2(b) so that it provides:

‘An employer must pay a part-time employee for hours worked in excess of their guaranteed hours in clause 10.5 or as varied under clause 10.6 at the overtime rate specified in column 2 of Table 10- Overtime rates’ (as proposed by the ARA). 28

[36] As to the first of these changes ABI submits:

‘The effect of this clause [i.e. proposed clause 10.8 in the draft variation determination] is that overtime does not apply to the working of guaranteed hours. Those guaranteed hours might be the hours initially set under clause 10.5 or guaranteed [hours] that have arisen as a result of a variation under clause 10.6.

However, clause 10.8 does not expressly state that overtime does not apply to work during guaranteed hours that have been varied pursuant to clause 10.6.

Whilst such an express statement is not technically necessary, having regard to:

(a) the substantial disputation that has arisen in these proceedings to date regarding the application of clause 10.6 to varying patterns of work and the payment of overtime;

(b) the existing confusion in the industry regarding how variations to hours of work may be made for part time employees and whether such variations attract overtime entitlements; and

(c) the inconsistent and oscillating positions of one of the key unions in the industry regarding these matters over the course of time (the SDA),

there is considerable merit in unambiguously confirming how overtime provisions interact with guaranteed hours that have been varied pursuant to clause 10.6.’ 29

[37] Similarly, NANA submits that the change we now propose to make would ‘ensure further clarity’. We agree.

[38] The NRA submits that by limiting the ‘guaranteed hours’ to the hours worked on each day rather than more broadly across the week, the Draft Determination represents ‘a missed opportunity to introduce more flexibility for part-time employees into the Award’. 30 We do not propose to make the change proposed by the NRA. Such a change would have the effect of significantly altering the scope of the expression ‘regular pattern of work’ in the Retail Award; in the absence of any detailed submission or evidence in support of the necessity for such a variation. If the NRA wishes to pursue this matter, they may make an application to vary the Retail Award.

[39] The SDA submits that proposed clause 10.5(a) is uncertain or ambiguous:

‘It is not clear, for example, whether the clause invites a conclusion, or proceeds upon an assumption, that the same hours must be worked on each day. While this is clearly unintended, any potential for uncertainty may be readily resolved by inserting the word “particular” after the word “each” in the sub-paragraph.’ 31

[40] The ARA opposes the SDA’s submission:

‘It is not clear from the SDA’s submission how the proposed clause is capable of more than one meaning, or how anyone reading the clauses could be unsure of the entitlements and obligations. Further, it is not clear how the addition of the word “particular” eliminates any ambiguity or uncertainty. Given this, the SDA’s proposed amendment should be rejected.’ 32

[41] At [49] of the 18 May Statement we expressed the provisional view that clause 10.5 be amended to more clearly reflect the reading above that the ‘number of hours agreed under clause 10.5’ means the number of hours the employee has agreed to work on each particular day of the week. Our intent is captured by the terms of amended clause 10.5(a):

‘10.5 At the time of engaging a part-time employee, the employer must agree in writing with the employee on a regular pattern of work that must include all of the following:

(a) the number of hours to be worked on each day of the week (the guaranteed hours); and

(b) the times at which the employee will start and finish work each day; and

(c) when meal breaks may be taken and their duration.

NOTE: An agreement under clause 10.5 could be recorded in writing through an exchange of emails, text messages or by other electronic means.’

[42] We did not intend to suggest that the same number of hours had to be worked on each day. To avoid any such suggestion we will insert the word ‘particular’ after the word ‘each’ in clause 10.5(a).

Interaction between clause 10 and clause 15

[43] At paragraphs [27] and [35] of the 18 May Statement, we expressed the following provisional views:

‘It is our provisional view that Re Leading Age Services and TWU v Qantas do not support the view that a part time employee’s regular pattern of work can only be changed by agreement, however they do support the view that clause 10 of the Retail Award ‘covers the field’ regarding when a part-time employee’s regular pattern of hours can be changed. The conflict between provisions in clause 10 and clause 15.9 discussed below supports this view.

…

It is our provisional view that the Retail Award clause 15.9 should be amended to make clear that provisions in clause 15.9 for roster changes do not apply to part-time employees. Further clarity would be achieved by deleting clause 10.10(b). Such amendments would mean that clause 10.6 would provide the only way in which agreed variations to an employee’s regular pattern of work can be made, and clause 10.10 would provide the only way in which an employer could change an employee’s regular pattern of work.’

[44] In the Draft Determination, we proposed to replace clause 10.10 with the following:

‘10.10 Changes to regular pattern of work by employer

(a) An employee’s regular pattern of work agreed under clause 10.5 or 10.6, other than the employee’s guaranteed hours, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change.

NOTE: Clause 15.7 contains additional rostering provisions. Clause 35 contains requirements to consult with employees about roster changes.

(b) However, the regular pattern of work of a part-time employee must not be changed from week to week or fortnight to fortnight or to avoid any award entitlements.

NOTE 1: See clause 27 – Rostering restrictions for the rosters of shiftworkers.

NOTE 2: An employee’s guaranteed hours can only be changed by agreement. See Clause 10.6.’

[45] The Draft Determination would also replace clause 15.9 with a new clause 15.9 which expressly provides that clauses 15.9(d), (e) and (g), which deal with roster changes, do not apply to part-time employees and which includes a note that refers to clause 10.6 which deals with when the roster of a part-time employee may be changed by mutual agreement, as follows:

[46] RAFFWU sees merit in the proposal, but it submits ‘this is a new approach and that it should include all current protections for part-time employees’. 33

[47] In particular, RAFFWU submits that clause 10.10(c) and clause 15.9(i) do similar but different work. Clause 10.10(c) provides that the roster of a part-time employee ‘must not be changed from week to week or fortnight to fortnight or to avoid any award entitlements’, whereas clause 15.9(i) provides that an employer ‘must not change the roster of an employee with the intention of avoiding payment of shiftwork or penalty rates, loadings or other applicable benefits. If the employer does so, the employee must be paid any shiftwork or penalty rates, loadings or benefits as if the roster had not been changed’. RAFFWU submits that 15.9(i) carries a structure for what occurs if the roster is changed contrary to the requirement, and that ‘it could sensibly be added to the end of clause 10.10(c)’.

[48] While clause 15.9 in the Draft Determination is not drafted to exclude application to part-time employees, we accept RAFFWU’s submission that the wording in that clause could sensibly be added to clause 10.10 so that if an employer changes an employee’s regular pattern of work from week to week or fortnight to fortnight or to avoid any award entitlements, the employee must be paid any award entitlements as if the regular pattern of work had not been changed. We consider that such a change would make the award provisions regarding when the roster of a part-time employee can be changed simpler and easier to understand. We will adopt the proposed change.

[49] RAFFWU also submits that there is some ambiguity between clause 10.10(a) and clause 15.9(e), but says that in practice the benefit in clause 15.9(e) is applied to workers. Clause 10.10(a) provides that the ‘roster of a part-time employee, but not the number of hours agreed under clause 10.5, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change’. Clause 15.9(e) provides that the employer ‘may make permanent roster changes at any time by giving the employee at least 7 days’ written notice of the change. If the employee disagrees with the change, the period of written notice of the change required to be given is extended to at least 14 days in total.’ RAFFWU submits that the entitlement to 14 days’ notice and to disagreements being discussed under the dispute settlement procedure should be applied to part-time workers. The SDA also submits that clause 10.10(a) should require 14 days’ notice if there is disagreement about a roster change. 34

[50] We are not persuaded that the changes proposed by the RAFFWU and SDA are warranted. Nothing in the Retail Award or the Draft Determination would preclude disputes about rostering provisions being dealt with under clause 36 of the Retail Award. Further, unlike clause 15.9(e), which does not limit the aspects of a roster an employer can unilaterally vary, clause 10.10 in the Draft Determination clearly limits the aspects of the part-time employee’s roster that can be changed to the times of work on a particular day. The days on which the employee has agreed to work and the number of hours on those days cannot be varied except by agreement. In those circumstances, we consider that the notice period provided in clause 10.10(a) is appropriate.

[51] The SDA submits that clause 10.10 could be made clearer by grouping the notes in the clause at the end of the clause, 35 and by reframing Note 2 so that it provides:

‘Note 2: An employee’s guaranteed hours including the days on which those guaranteed hours are agreed to be worked can only be changed by agreement.

[52] We agree with the SDA and will amend clause 10.10 in the Draft Determination to that effect.

[53] The SDA also submits that clause 15.9 should include a separate note to the effect that clause 35 provides for consultation about roster changes. 36 The ARA does not oppose this submission but questions the need for the note.37 For clarity, we will include the note after clause 15.9(d).

[54] NANA submits that rostering requirements in clause 15.9, which it believes do not apply to casual employees, should be amended to explicitly articulate where a sub-clause applies to full-time employees and when it applies to both full-time and part-time employees. 38 The SDA opposes this change and does not agree that casuals are never part of a roster.39

[55] The NRA makes a related submission, concerning when a provision of the Retail Award applies to a part-time employee. It says that clause 10.3 is ‘ambiguous in the sense of what is required in order for a provision of the Award to be “otherwise expressly provided”’. It suggests including a note to assist lay users that where the Award specifies that a particular provision applies to full-time employees, it applies only to full-time employees to the exclusion of part-time employees. This submission is also opposed by the SDA. 40

[56] We are not persuaded that the amendments proposed by the NANA or NRA are necessary.

The minimum engagement term

[57] Clause 10.9 of the Retail Award provides:

‘The minimum daily engagement for a part-time employee is 3 consecutive hours.’

[58] In the 18 May Statement, we expressed the provisional view that clause 10.9 does not require clarification. 41 The NRA, SDA and ABI indicate their agreement with this provisional view.42 No submissions were made opposing our provisional view.

[59] We confirm our provisional view that clause 10.9 does not require clarification.

Mechanism for review of guaranteed hours

[60] In the 24 March Decision, we expressed the provisional view that there may be merit in varying the Retail Award to introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request. 43 In the 18 May Statement, we expressed the provisional view that it is appropriate to provide a 12 month period before such a request can be made.44

[61] The Draft Determination includes such a mechanism at clause 10.11.

[62] Most parties either supported or did not oppose the inclusion of such a mechanism; ABI and the ARA take a different view and submit that such a mechanism is not necessary on the basis that the variations to the Retail Award that the Commission has proposed do not increase the flexibility of the Award but merely re-state how clause 10.6 already works. 45

[63] We are not persuaded by the submissions of ABI and the ARA. Contrary to the tenor of the ABI/NRA submission the variation determination we propose to make improves the clarity and usability of the current provisions and reduces the regulatory burden on employees. We also note that both parties submit that such a mechanism would be an appropriate safeguard where a standing consent arrangement exists, in circumstances where the standing consent arrangement proposed amounts to no more than an agreement by the employee to be offered additional hours at ordinary rates, without compelling the employer to offer or the employee to accept such hours. Such a safeguard also supports the reasonable predictability of part-time employment and it provides some protections against employers providing part-time employees with fewer guaranteed hours on the assumption that they can ‘flex up’ at ordinary rates whenever additional work is required.

[64] The NRA submits that proposed clause 10.11 appears to reflect similar provisions in the Restaurant Industry Award 2020 and the Hospitality Industry (General) Award 2020, but that it goes further in that it would effectively compel an employer to make regular overtime part of a part-time employee’s ordinary hours of work.

[65] Proposed clause 10.11 does not entitle an employee to request that their regular overtime become part of their ordinary hours of work. It provides that where an employee’s guaranteed hours are less than the ordinary hours that the employee has regularly worked in the previous 12 months, the employee may request in writing that the employer increase their guaranteed hours on an ongoing basis to reflect the hours regularly being worked. By operation of clause 10.8, guaranteed hours do not include overtime hours.

[66] While we do not consider that proposed clause 10.11 operates as suggested by the NRA, we will insert the word ‘ordinary’ so that the request an employee can make is to ‘increase their guaranteed hours on an ongoing basis to reflect the ordinary hours regularly being worked’.

[67] We note that there is nothing in the Retail Award to preclude a part-time employee asking for a variation to their regular pattern of work under clause 10.6, including so that their ‘guaranteed hours’ reflect any overtime regularly being worked.

Standing consent arrangements

[68] ABI submits that there remains merit in enabling employer and part-time employees agreeing to a standing arrangement whereby:

(a) the employees agree to be offered additional ordinary hours (up to a maximum of 38 in any week) from time to time – the agreement confirms the employees’ preparedness to work these additional hours at single time rates

(b) employers are not compelled to offer such hours, and

(c) The employees retain the ability to refuse any hours offered on a case by case basis. 46

[69] At [133] - [148] of the 24 March Decision we identified a number of difficulties with the proposed ‘standing consent arrangements’ and at [148] said:

‘the ABI proposal plainly proceeds on the expectation that a part-time employee will accept an offer to work additional hours within their stated availability. If such a claim is to be pursued it will amount to a substantiated variation to the existing part-time work arrangements.’

[70] We adhere to that view. Any proposal to insert a standing consent arrangement should be the subject of an application to vary the Retail Award.

The Commission’s power to vary the Retail Award

[71] At paragraph [51] of the 18 May Statement, we expressed the provisional view that the Retail Award be varied on the Commission’s own motion under ss.157 and 160 of the FW Act in accordance with the other provisional views expressed in that statement.

[72] At [92] to [96] of the 24 March Decision, we set out the legislative framework under which the Commission can vary a modern award. We adopt those observations and need not restate them here, but note that under the FW Act, the Commission can make a determination varying a modern award (otherwise than to vary modern award minimum wages or to vary a default fund term of the award) if the Commission is satisfied that making the determination is necessary to achieve the modern awards objective in s.134 of the FW Act, 47 and may make a determination varying a modern award to remove an ambiguity or uncertainty.48 The Commission may make such determinations on its own initiative.49

[73] Only the SDA made submissions on the provisional view expressed at [51] of the 18 May Statement. It accepts that this Full Bench may, on its own motion, make a determination varying the Retail Award to ensure that it meets the modern awards objective and/or is not ambiguous or uncertain in its operation, if we are satisfied on proper grounds that making such a determination is necessary to achieve the modern awards objective or resolve the ambiguity or uncertainty. The SDA also advanced the following suggestion:

‘that the Commission identify to the parties the further amendments proposed by interested parties which it provisionally considers ought be made and provide a further draft to the parties of the proposed clause incorporating those proposed suggestions in relation to which interested parties can be afforded an opportunity for final reply submissions.’ 50

[74] We do not propose to adopt the SDA’s suggestion. All parties have had a reasonable opportunity to make submissions and to comment on the proposals advanced by other parties. We agree with NANA that the Retail Award should be varied at the earliest opportunity.

Conclusion

[75] Earlier in these proceedings ABI filed a research report by Senior Professor Paul Gollan and other (the Gollan Report), in support of the variation it was proposing. As we said in the 24 March Decision, the Gollan Report says very little about the respective merits of the Joint Applicant’s proposed variation and the ABI proposal, but it does support a finding that:

‘there is a level of confusion among Retail employers about the operation of various provisions of the Retail Award and, in particular, about the capacity for part-time employees to work additional hours at ordinary time rates under the current terms of the Retail Award’. 51

[76] The variation we propose to make will provide greater clarity as to the operation of these provisions. In this regard we particularly note that MGA, TMA and COSBOA welcomed the proposed changes noting that ‘they will provide clarity for employers and employees in respect of part-time employment’:

‘In particular, the amendments to Clauses 10 and 15 refer to how hours of work may be increased and recorded which will provide a means of ensuring that both parties are fully aware of their mutual obligations in respect of such times worked and the recording and payment for such hours. It is noted that a simple and easy method of recording any proposed variations to hours of work will contribute to the avoidance of unintended underpayment of wages…

The changes as proposed in the Draft Determination will provide the flexibility that is required to engage part time staff by providing more hours of work when they become available, at the ordinary rate of payment. The new arrangements will ensure more benefits for part-time employees and greater certainty for employers. Should the amendments as proposed be made to the Retail Award MGA/TMA and COSBOA are confident that many employers and employees will welcome the opportunity to have clarity in the award provisions that apply to part time employment.’ 52

[77] We confirm our provisional views that the Retail Award be varied on the Commission’s own motion under ss.157 and 160 of the FW Act in accordance with our provisional views set out above in the 18 May Statement and summarised at [14], [31], [41], [43], [58] and [60] above. We are satisfied that such variation is necessary to ensure that the Retail Award achieves the modern awards objective in s.134 of the FW Act. In reaching that conclusion we have had regard to the matters in ss.134(1)(a) to (h), specifically, ss.134(1)(d), (f), (g) and (h).

[78] We are also satisfied that the variations summarised at [14], [31], [43] and [58] above are necessary to resolve uncertainty about the operation of clause 10 and its interaction with clause 15.9 of the Retail Award.

[79] We propose to vary the Retail Award as set out in the Draft Determination, subject to the additional changes noted at [18], [24], [35], [42], [48], [52], [53] and [66] above. A variation determination will be issued with this decision which will commence operation on 1 July 2021.

[80] We do not propose to take any further steps in relation to matter 2021/7. Any party wishing to pursue any further variation to the Retail Award is to file an application to vary.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730906>

 1   [2021] FWCFB 1608 at [36].

 2   [2021] FWCFB 1608 at [100].

 3   [2021] FWCFB 1608.

 4   24 March decision at [120] and [156].

 5   24 March Decision at [156]-[157].

 6   18 May Statement at [58].

7 NRA submission at paragraphs 1.2-1.6; RAFFWU submission; ARA submission in reply at page 2; SDA submission in reply at paragraphs 6-10.

 8   ARA submission in reply at pages 2-3.

 9   ABI submission at paragraphs 17 to 22; NRA submission at paragraphs 1.10-1.16; ARA submission in reply at page 3.

 10   ABI submission at paragraphs 23-26.

 11   RAFFWU submission at paragraphs 9-10.

 12   18 May Statement at [15]-[20].

 13   ABI submission at paragraph 7. MGA submission at page 3.

 14   ABI submission at paragraph 8.

 15   NANA submission, page 1.

 16   ARA submission in reply, paragraph 4. SDA submission in reply, paragraph 14.

 17   NRA submission at paragraph 1.2.

 18   NRA submission at paragraph 1.5.

 19   NRA submission at paragraphs 1.6-1.7.

 20   ARA submission in reply at paragraph 7.

 21   SDA submission in reply at paragraphs 6-10.

 22   SDA submission in reply at paragraph 7.

 23   SDA submission at paragraph 3(B).

 24   ARA submission in reply at paragraph 5.

 25   RAFFWU submission at paragraphs 5-6.

 26   RAFFWU submission at paragraph 12.

 27   NANA submission at pages 1-2; ABI submission at paragraph 16.

 28   NRA submission at paragraph 2.2.

 29   ABI submission at paragraphs 13-15.

 30   NRA submission at paragraph 1.9.

 31   SDA submission at paragraph 3(A).

 32   ARA submission at paragraph 2.

 33   RAFFWU submission at paragraph 9.

 34   SDA submission at paragraph 3(D).

 35   SDA submission at paragraph 3(G).

 36   SDA submission at paragraph 3(F).

 37   ARA submission in reply at paragraph 8.

 38   NANA submission at pages 2-3.

 39   SDA submission in reply at paragraph 15.

 40   SDA submission in reply at paragraph 11.

 41   18 May Statement at [39].

 42   NRA submission at paragraph 1.1; SDA submission at page 3; ABI submission at paragraphs 10-11.

 43   24 March Decision at [155].

 44   18 May Statement at [53].

 45   ABI submission at paragraph 22; ARA submission in reply at paragraph 7.

 46   ABI submission at paragraph 23.

 47   Fair Work Act, s.157(1)(a).

 48   Fair Work Act, s.160(1).

 49   Fair Work Act, ss.157(3)(a) and 160(2)(a).

 50   SDA submission at paragraph 6.

 51   24 March Decision at [76].

 52   MGA submissions at pages 3-4.